Wednesday, April 16, 2008

OK, then...what about human rights?

The opponents of Human Rights Commissions are winning. I'll be accused of giving aid and comfort to the enemy by stating the obvious, but it doesn't take a weatherman, etc., as we used to say. Newspaper editorials are getting testy; civil libertarians (well, Alan Borovoy, anyway) are fussing aloud; and well-connected, articulate conservatives are banging the war-drums ever louder.

Meanwhile, who is speaking up for Human Rights Commissions? A few left-wing bloggers--the usual suspects. Present and former Human Rights Commission officials. Where are the politicans? Mind you, one expects Stéphane Dion and his sorry crew to go on hiding under their desks in the House of Commons--selling out immigrants, standing by while the Conservatives turn back the clock twenty years on abortion rights, anything to forestall an election--but where's the NDP? Where are the progressive columnists--are there any left, no pun intended?

What are the issues here? Liberal Keith Martin wants to abolish Section 13(1) of the Canadian Human Rights Act, the clause that presently discourages whipping up hatred against minorities and women, but that's just the beginning, and everybody knows it. Ezra Levant and his crowd want to abolish Human Rights Commissions altogether. Don't take my word for it--Levant's not shy about stating his agenda out loud: "I believe the human rights commissions should be abolished, not legitimized," he says, and I take him completely at his word.

Free speech, as I've said before, isn't the issue, and it never has been, but it makes a heck of a good smokescreen. The right of neo-Nazis to speak, as we've seen, has been vigorously defended. But in breathtaking acts of doublethink, our antiquated and dangerous libel laws are used by the same folks to squelch opposition.
(When the tables are turned, though, suddenly it's "libel chill" and that mean Mr.Warman.) Bill C-10, which will permit state censorship in the arts, has their strong support as well.

But this isn't about hypocrisy. It's about a clever conservative strategy, and it's looking like a successful one. What can we do about it?

First off, we need to be clear: the current operations of human rights commissions, all fourteen of them (one per province and territory, and the CHRC) leave a thing or two to be desired in terms of both procedures and outcomes. There is such a thing as a frivolous, vexatious complaint; there are also complaints offered up in perfectly good faith that simply will not stand. Clearly there must be a comprehensive screening process at the outset, one based upon law and jurisprudence, that weeds them out before the entire ponderous and costly apparatus of a tribunal is brought to bear.

That was (although Levant's fatuous histrionics nearly erased this fact from public consciousness) precisely what was going on at the Alberta Human Rights Commission. It would have been the work of a few minutes, requiring no more than a letter at most, if he hadn't tried to turn it into the Trial of the Century, prolonging his own alleged agony on endless video recordings and loving every minute of it. But meanwhile, Mark Steyn's unpleasant words in Maclean's magazine, while screened out in Ontario (the OHRC is being harshly criticized, though, for daring to refer to that unpleasantness at all), are being put on trial before both the BC Human Rights Commission Tribunal* and the CHRC.

And now, to top it all off, the Ontario Human Rights Commission is no longer going to screen complaints. They'll all go to a Tribunal. Every last one of 'em. Good grief. The anti-human-rights folks are going to have a field day with this one. I wonder how many hundreds or even thousands of bogus complaints scribbled on cocktail napkins by those busy bees are going to be submitted to the OHRC before someone in charge finally gets the message?

The problem is this. Human Rights Tribunals are supposed to offer recourse to the average citizen suffering discrimination--people who can't afford lawyers, court costs and powerful opponents with deep pockets. Like any other quasi-judicial tribunal, access is relatively easy, and proceedings are informal. That's as it should be. But the only way a system like this can work, practically speaking, is to keep it from getting clogged. And to prevent clogging, a fair and effective screening process is a must.

(There is a wider issue, of course. Such state institutions are used to channel and control discontent; they deal with the symptoms and not the disease, namely, the unequal power relations from which discrimination springs. But let us put this in parentheses for the time being. For now, Human Rights Commissions are all that a victim of discrimination has.)

The second point is that respondents are currently required to foot their own bills, win, draw or lose. This is simply wrong. If a complaint is not upheld, reasonable costs should be awarded. The respondent has a right to be made whole, just as the complainant presently is when a complaint is upheld.

Rather than issuing defensive statements, officials, ex-officials and supporters of Human Rights Commissions should gracefully concede that the current system is in some need of adjustment. I don't want to debate whether or not hatred and discrimination should be tolerated in a free and democratic society. The answer to that one is obvious, at least to me. Instead, we should be discussing how the current system, at least in the short and medium terms, should be altered to conform to the popular sense of fairness and justice.

The debate, then, badly needs to be reframed. So far, we've let conservatives set the terms, and the damage is becoming more apparent by the day. We've been diverted by the disingenuous use of "free speech" issues, which is only the thin edge of the wedge. Human rights legislation and the bodies that enforce it are the real targets. We need, therefore, to cast a cold and impartial eye on the processes and procedures of the Commissions, face up to their shortcomings, and lobby for changes. And there's no time to lose.

*As reader Ian King points out, the BC Human Rights Commission per se no longer exists; the BC Human Rights Tribunal, however,appears to have essentially the same powers and structure as a commission, as well as tribunal functions.

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